by Claude Opus 5.5
Is “affirmative consent” (yes means yes) a better standard than “no means no” for campus codes? Does it shift the burden of proof unfairly?
For decades the slogan of campus anti-rape campaigns was “no means no”. Since around 2014 many universities, and some state laws, have adopted a different standard: affirmative consent, often summarised as “yes means yes”. California required it of colleges receiving state funds in 2014, and New York’s 2015 “Enough is Enough” law requires every college in the state, Cornell included, to define consent affirmatively. The shift is often described as a small change of emphasis. It is actually a change in the structure of the rule, and it raises a real question about fairness.
What the two standards say
Under a “no means no” standard, sexual activity is permissible unless the other person refuses. Silence or passivity counts as acceptance unless there is some sign of objection. The burden falls on the person who does not want to proceed to say so.
Under an affirmative consent standard, sexual activity is permissible only if the other person has indicated, by words or conduct, that she agrees. Silence or passivity does not count as agreement. Most campus policies add that consent must be ongoing, can be withdrawn, cannot be given by someone who is incapacitated, and cannot be inferred from a previous relationship or from consent to a different act. The burden falls on the person who wants to proceed to make sure that agreement is present.
The case for affirmative consent
The strongest argument for affirmative consent starts from the fact that people often do not say no even when they do not want to proceed. They may freeze, which is a well-documented response to fear. They may be intoxicated and unable to articulate refusal. They may fear the consequences of refusing, particularly if outnumbered or in someone else’s space. A “no means no” standard treats all these people as having agreed. That seems backwards. It makes their protection depend on doing the very thing that the situation makes hardest.
A second argument concerns the morality of sex itself. Sex is an activity that involves another person’s body in an intimate way. In most areas of life, we do not think it acceptable to use someone else’s body or property unless they have agreed; we do not take a car just because the owner has not objected. Affirmative consent applies the ordinary principle of permission to sex. On this view, “no means no” was always an anomaly.
A third argument is educational. Campus codes are partly about teaching norms to a community, and affirmative consent teaches people to check rather than assume. That habit protects both parties: it reduces the risk of harm and the risk of misunderstanding.
The case against
Critics raise several objections. Some say affirmative consent does not describe how most people actually negotiate sex, which often relies on non-verbal cues and mutual understanding rather than explicit statements. If interpreted strictly, the standard could make much ordinary consensual sex technically a violation. Defenders reply that the standard allows consent to be expressed through conduct, not only words, so ordinary non-verbal agreement satisfies it. But this reply raises its own problem: if conduct counts, then disputes will turn on interpreting conduct, which is exactly what the old standard required.
The more serious objection concerns burden of proof. Under “no means no”, a complainant must show that she refused or that she could not refuse. Under affirmative consent, critics argue, the respondent must in effect show that she said yes. Since many encounters take place in private, with no witnesses, a respondent may be unable to prove that consent was given. The rule thus seems to invert the presumption of innocence.
Does it actually shift the burden of proof?
This objection rests on a confusion between the content of a rule and the allocation of proof. A rule says what conduct is prohibited. The burden of proof says who must prove that the prohibited conduct occurred. Affirmative consent changes the first. It does not necessarily change the second.
Under a properly run process, the institution must still show, to the relevant standard, that sexual activity occurred without affirmative consent. The respondent does not have to prove that consent was given. What changes is what the institution must show. Under “no means no”, it must show refusal or incapacity; under affirmative consent, it must show the absence of agreement. In practice, this can be easier to establish, because absence is easier to show than a specific act of refusal. That is a real change in practical difficulty, but it is not a reversal of the formal burden.
Still, the critics have a point in practice. In a credibility contest with no other evidence, a respondent who says “she agreed” and a complainant who says “I did not agree” leave a fact-finder to decide between two accounts. If the fact-finder starts from the assumption that agreement must be positively shown, the respondent may find that his account carries less weight than it would under the older standard. Whether that is unfair depends on whether one thinks the older standard gave too much weight to silence.
A balanced conclusion
Affirmative consent is the better moral standard. It treats sex like any other use of another person’s body, it protects people who cannot or do not say no, and it encourages the kind of attention that prevents harm. But it must be paired with careful procedure. Institutions should be clear that the burden of proving a violation stays with them, that consent can be shown through conduct as well as words, and that credibility must be assessed on the evidence rather than on assumptions about which party is more likely to be telling the truth. A good standard applied through a bad process can be as unjust as a bad standard.